DIVISION OF CHILD ABUSE AND DOMESTIC
VIOLENCE SERVICESDepartment for Human Support ServicesCabinet for Health and Family Services

Protecting the Confidentiality of Mental Health Records in Civil
and Criminal Litigation

Having gone through the trauma of domestic violence or sexual
assault, victims are often in need of counseling or other mental health support
to aid them in recovering from the crime. In such situations, mental health
providers and victims both encounter the question of when client records will
remain confidential from the prosecution or any lawsuit which may result from
the attack. Kentucky's rules of evidence require that, in certain
circumstances, clients' mental health records are confidential and
privileged from disclosure during civil or criminal proceedings. In order for
mental health providers and victims of sexual assault and domestic violence to
ensure that client records remain confidential and receive the maximum degree
of protection accorded by law, they must be aware of the rules of evidence
regarding the privileges and the case law interpreting those rules.

KENTUCKY RULES OF EVIDENCE RELATED TO
PRIVILEGED COMMUNICATIONS

Kentucky has two
privileges contained in the Rules of Evidence which protect communications
between victims (patients or clients) and their mental health providers:

Kentucky Rule of Evidence (KRE) 506 is the counselor-client
privilege, which applies to certified school counselors, sexual assault
counselors, certified professional art therapists, certified marriage and
family therapists, certified professional counselors, individuals who provide
crisis response services, and victim advocates (except those employed by a
Commonwealth or county attorney). This rule states that:

"a client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications made for
the purpose of counseling the client, between himself, his counselor, and
persons present at the direction of the counselor, including members of the
client's family." KRE 506(3)(b).

The definition of "confidential" as it relates to
communications is if it "is not intended to be disclosed to third persons,
except persons present to further the interest of the client in the
consultation or interview, persons reasonably necessary for the transmission of
the communication, or persons present during the communication at the direction
of the counselor, including members of the client's family." KRE
506(a)(3). The privilege may be claimed either by the client or by the
counselor on the client's behalf.

Notably, the privilege offered by KRE 506 is far from complete. First, it does
not apply in cases where the client asserts his physical, mental, or emotional
condition as an element of a claim or defense. Secondly, and most significantly
for victims and mental health providers, the privilege which protects a record
will not apply if the judge, in a civil or criminal proceeding, conducts a
hearing and finds that:

1) the communication is relevant,2) there are no available
alternate means of obtaining the information, and3) the need for the information
outweighs the client's privacy interest.

In making the determination on whether to uphold the privilege,
the judge may review the mental health records in camera., meaning that the
judge will review those records in chambers and in private (i.e., the defense
would not be able to see the records at that point).

KRE 507, the psychotherapist-patient privilege is a stronger
privilege, since it contains no exception which permits the judge to abolish
the privilege if the communication is found relevant. Included within the
definition of "psychotherapist" are those who are licensed to
practice medicine and engaged in the diagnosis or treatment of a mental
condition; licensed or certified psychologists; licensed clinical social
workers; and licensed registered nurses who practice psychiatric or mental
health nursing. This rule states that:

"A patient, or the patient's authorized representative, has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications, made for the purpose of diagnosis or treatment to
the patient's mental condition, between the patient, the patient's
psychotherapist, or persons who are participating in the diagnosis or treatment
under the direction of the psychotherapist, including members of the patient's
family." KRE 507(b).

KRE 507's privilege does not extend to proceedings to hospitalize
the patient for mental illness, on issues involving the patient's mental
condition where the patient makes the communication during a court examination
and has been informed the communication is not privileged, and in cases where
the patient asserts his physical, mental, or emotional condition as an element
of a claim or defense.

The strength of this privilege is evident from the Kentucky cases
which have addressed it. In 1983, when examining the scope of the psychiatrist
privilege, contained in a predecessor statute to KRE 507, the Kentucky Court of
Appeals upheld the privilege and recognized the valid reasons for establishing
such a privilege:

Confidentiality is essential if psychiatrists are to be in a
position to successfully treat their patients. A thorough understanding of the
patient's problems and feelings must be divulged if treatment is to be
appropriate and effective. The legislature has seen fit to make such
communications privileged. The privilege granted by KRS 421.215 is absolute in
the absence of other legislated and recognized exceptions. . . It is not for
this Court to take it upon itself to waive the privilege for someone or to carve
out exceptions.

Despite the two privileges described above, some courts have been
providing the defense with access to a victim's mental health records when they
serve as a witness in a civil or criminal proceeding. The ruling of courts in
this regard is based on the 1994 case of Eldred v. Commonwealth, Ky.,
906 S.W.2d 696 (1994). In Eldred, a murder case, two witnesses were
suffering from psychological problems which conceivably could have interfered
with their ability to testify concerning the events they had witnessed. One
witness, for example, suffered from total amnesia, and the other admitted to a
drug addiction, which along with epilepsy and severe depression, had provided
the basis for a social security disability claim. The opinion indicates that
the Commonwealth did not urge either the privilege of KRE 506 or that of 507,
since the court notes that "there does not appear to be any real dispute
that appellant is entitled to discover medical or psychiatric records
concerning a witness if certain prerequisites are met." Eldred, 906
S.W.2d at 701. In the Eldred case, the court held that the defendant was
entitled to discover a witness' mental health history when that information is
deemed relevant to a witness' credibility. In such cases, the court itself could
subpoena the records and review them, releasing them to the defendant if the
court deemed them relevant.

Subsequent to Eldred, however, the United States Supreme
Court denied a defendant's right to access a victim's psychological records in Jaffee
v. Redmond, 116 S.Ct. 1923 (1996). The Supreme Court held that federal
courts would recognize a psychotherapist privilege, and in doing so, affirmed,
in strong language, the importance of protecting communications between clients
and psychotherapists. Noting that confidentiality "is a sine qua non for
successful psychiatric treatment", the Court stated that a psychiatrists'
ability to help her patients "is completely dependent upon [the patients']
willingness to talk freely. This makes it difficult if not impossible for [a
psychiatrist] to function without being able to assure ... patients of
confidentiality." In contrast to the strong public good served by creating
a privilege, the Court found that denying the privilege would give defendants
only a "modest" evidentiary benefit. Since only a privilege would
give patients the needed security to freely talk to their psychiatrists, the
absence of a privilege would produce such a "chill" on patient
communications to psychiatrists, that there would be little communication and
therefore little discoverable evidence anyway. The Court noted that "this
unspoken 'evidence', will, therefore serve no greater truth-seeking function
than if it had been spoken and privileged." Jaffee, at 1929.

A recent order, issued by Judge William Mains in a Rowan Circuit
rape case, has direct impact on the protection of victims' records. In the case
of Commonwealth v. Buttz, the defendant filed a discovery motion with
Judge Mains, requesting the mental health records of the victim. At the hearing
on the motion, the victim appeared and objected to disclosure of those records,
relying upon KRE 507. Judge Mains noted the scope of the privilege of KRE 507,
the holding in Eldred, and the language of the Supreme Court in Jaffee
which "said in unequivocal terms that communications between a licensed
psychotherapist and her patient in the course of diagnosis or treatment are
protected from compelled disclosure."
Judge Mains then denied the discovery motion for the records, holding:

In this case, the complaining witness has chosen to exercise her
privilege. Under Jaffee, this Court is of the belief that it has an
obligation to respect such privilege due to the close similarity between the
Federal and State rules. Eldred is not applicable since the complaining
witness has chosen to exercise the privilege. Buttz Order of April
8, 1997 at 2.